Freedom from Fear

The First Amendment ethos guarantees citizens the right to participate in their democracy without fear of physical retribution. If there is any one foundational right in America, this is it -- it is the right that so many of us, fleeing from oppressive societies/regimes, originally came to this country specifically seeking. But as my new syndicated newspaper column shows, that First Amendment right is now being threatened by, of all things, the Second Amendment.

The rise of gun-toting protesters at congressional and presidential town hall meetings has put citizens' right to bear arms in direct conflict with citizens right to attend public political meetings without fear of physical retribution. Indeed, in bringing loaded weapons -- as opposed to a sign portraying a gun, for instance -- to these meetings, protesters are quite deliberately aiming to intimidate others. They are, in effect, asserting that their Second Amendment rights to bear arms should come before everyone else's First Amendment rights.

Having lived in Montana and now living in Colorado, and having reported extensively on the Minuteman movement for my most recent book, I have a solid firsthand sense of gun culture. And I sincerely believe this isn't about the old debates about gun ownership. You can be adamantly for the right to bear arms, and also believe that it's unacceptable to brandish loaded weapons at public political meetings.

So, how to resolve the constitutional conflict? Well first, I'd suggest remembering that the sequence of the Bill of Rights isn't random. The First Amendment came before the Second Amendment because our Founders clearly believed it is the most sacred principle in a democracy.

Practically, that means making public political meetings gun-free zones, just like stadiums and schools. In doing that, we can circumvent the tired old debate about gun ownership rights and simply protect everyone's right to engage in their democracy free of fear.

Read the whole column here.

The column relies on grassroots support -- and because of that support, it is getting wider and wider circulation (a big thank you to all who have helped with that). So if you'd like to see my column regularly in your local paper, use this directory to find the contact info for your local editorial page editors. Get get in touch with them and point them to my Creators Syndicate site. Thanks, as always, for your ongoing readership and help contacting local editors. This column couldn't be what it is without your help.

Comments

[OdinsEye]

I queried a promiment law professor at UCLA and here is what he said:

ME: It has been asserted by some that the numerical order of the amendments to the Constitution of the US, especially of the first ten amendments, establishes an order of precedence over one another.


PROFESSOR: "Absolutely not; I know of no evidence that this was understood this way by the Framers or by any authoritative institutions since, nor do I know of any legal principle that would support such a position."

I can forward the email to any who are interested.

[legaleagle 45]

Eugene Volokh?

[OdinsEye]

Excellent guess!

[cobaltbluedog]

Hello Legalegale 45,

For a good quote, I shall paraphrase Thomas Jefferson:

"If I were required to give up all rights save one, I would choose freedom of speech, because with that I can regain all the others."

I have enjoyed many of your posts, but this one is a favorite. Right up front, I have no problem with responsible gun ownership. Mr.Sirota's article advocates for responsible gun ownership. Like him, I don't feel they have any place at public meetings, but that's not my point.

What I liked, so much, about the quote, is that Jefferson would choose FREEDOM OF SPEECH over brandishing a gun, as a means of protecting his freedoms.

Thanks again for that quote, I've maked it as a favorite.

[legaleagle 45]

cobaltbluedog wrote:: "Like him, I don't feel they have any place at public meetings, but that's not my point."

As I try to caution Dream, there are few absolutes in this world. An example where such activity might be appropriate is at an NRA convention or perhaps at a political rally in favor of open carry.... but for the most part, I would agree. There are many appropriate legal uses for a gun, but IMHO using a gun to make a political point, while not illegal is generally inappropriate.

cobaltbluedog: wrote: What I liked, so much, about the quote, is that Jefferson would choose FREEDOM OF SPEECH over brandishing a gun, as a means of protecting his freedoms.

I certainly agree and I hope most people agree, that peaceful resolution of disputes is the prefered option and that force should be avoided at all costs. However, and I am sure Jefferson would agree, that any despot that would take away all your rights save one, could not be trusted to honor the one you have chosen to save... and there in lays the quandry.

[cobaltbluedog]

Hello LegalEagle,

Thanks for your thoughtful reply.

I don't think we have reason to feel we're anywhere near that particular quandry, in our country today. Do you?

Thanks again, cbd

[OdinsEye]

I really hope Davis reads here and gets this message:

"Well first, I'd suggest remembering that the sequence of the Bill of Rights isn't random. The First Amendment came before the Second Amendment because our Founders clearly believed it is the most sacred principle in a democracy. "

The sequence of the amendments has absolutely nothing to do with any order of precedence.

Anyone who has ever taken even a rudimentary law class understands this.

However, if you want proof, consider this: Had the Founding Fathers proposed amendments based on order of precendence, then the 27th Amendment would actually be a higher precedence than the 1st Amendment, since in the original Bill of Rights, what became the 1st Amendment was the 3rd Article and the 27th Amendment is the 2nd Article.

http://www.constitution.org/billofr_.htm

[OdinsEye]

David, not Davis

[legaleagle 45]

OdinsEye wrote: "The sequence of the amendments has absolutely nothing to do with any order of precedence."

To emphasize this point, Madison was assigned the task of writing the BoRs by the 1st Congress. The initial draft which Madison presented to Congress on June 8, 1789 followed a format which called for amendment by interlination rather than by appending the amendments to theend of the constituion. Thus, he would have had amendments inserted into the body of the Constituion where they would most appropriately appear. For example, much of what was to become the 5th Amendment was supposed to be inserted directly into Article III (covering the judicial branch). Of course, if Madison's format was employed, there would be no issue, as the various amendments would be scattered around the Constituion based solely upon their relevance to the particular section to which they would pertain.

Madison did express a preference as to his "favorite" amendment. Unfortunately, Madison's favorite did not even make the cut and was not part of the 12 submitted for ratification. Bonus points if you know waht that amendment was...

;-)

[OdinsEye]

Sorry, but I have no idea what his pet amendment was.

[legaleagle 45]

Madison's pet Amendment was this one:

"Fifthly. That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit:

No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases."

It made a "quasi BoR" which would be applicable to state action. As I am sure you are aware the actual BoR's is not applicable to the states. It is only through operation of the 14th amendment that portions of the BoRs are made applicable to the states.... and the rule before the 14th was that they were not applicable to the states. See, Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833). The reason Congress did not give its seal of approval to Madison's pet amendment was because it was felt that the demands from the State Ratifying Conventions were for guarantees against the abuse of federal powers and not state powers and that any attempt to go beyond those demands and impose more restrictions on the states would open up a can of worms that they did not want opened.

[ArizonaPatriot2]

This is unbelievable. The constitional rights guaranteed in our Bill of Rights were intended to be and still are restrictions on the GOVERNMENT! I can't believe that someone actually believes it is a restriction on everyone. Restrictions on the government. Government.

[mjc]

There is no such thing as freedom from fear. There are always people ready and willing to conjure up fear, fear of the unknown, fear of other humans, fear of other genders, and fear of violence just to name a few. Guns have no place in a civilized society. We no longer light fires in front of our homes(caves) to keep out predators. The second amendment was designed to make it possible for militias to assemble and to have arms with them to defend their communities. We are not faced with an armed intervention or uprising. But those who propagate fears want us to be able to take guns with us everywhere, to church, to schools, to hospitals, to assemblies. That isn't just nuts, it is totally destructive of the fabric of society.

[OdinsEye]

The Second uses the ability to form militias as a reason to not infringe the right, not a reason for why or when the right exists.

[Estreet1964]

I'd feel a lot better if they came up with a way to keep guns out of the hands of obviously delusional people.

[capitalismisntamoral]

I hear that!

It seems to me that all those advocating guns are the ones who are afraid.
It leaps off the screen in their comments here.

Telling others to get guns because they are afraid of people carrying guns around is just projecting their own fears onto others. Their 'solution' is to have everyone arm themselves?

Someone who is so afraid or insecure that he needs to carry a gun around to make himself feel big and powerful, sounds like a policeman.

I don't see what's irrational about being afraid of someone like that, who is carrying a gun purposely to intimidate. Guns can kill people - in fact that's exactly what they are designed to do.

You say that everyone should carry guns, but you know many people will never do that.
Luckily for you that still puts you in the position of power/inti­midation/b­ullying.
How convenient.

[OdinsEye]

Are you afraid if you own a smoke detector at home? Spare tire in your car? Have a 1st Aid kit?

"Guns can kill people - in fact that's exactly what they are designed to do."

Hammerli 160/162

Leave the psycho@nalysis to Freud and Jung.

[Karlitos]

Mr. Sirota:

You are taking "creative liberties" with your writing on this issue.

1) The first amendment protects certain rights such as speech and assembly from physical retribution by the government. But while you have a right to speech and a right to assembly and a right to arms ... you have no right to being without fear. Your suggestion is a stretch ... it's dishonest.

2) We are free to participate in the democratic process. Our system of government is a constitutional republic, not a democracy. If you don't understand the difference, you need to do some studying.

3) There was no brandishing of arms. The carrying of holstered pistols or slung rifles is not brandishing. If a person is, for example, scared of holstered guns, and this fear causes them to quit protesting ... that is their problem. They need to face that irrational fear. The arms-bearers at those rallies were not brandishing nor threatening other protesters.

4) You suggest creating more gun-free zones. On the contrary, the trend has been to eliminate gun free zones precisely because they are no obstacle to criminal behavior (they are magnets for such behavior). The Heller decision discussed that prohibiting arms from sensitive places was presumptively lawful. Surely a "sensitive place" is not just any area where people gather. It must be defined objectively, and narrowly (we're talking about infringing a fundamental right).

[OdinsEye]

"Well first, I'd suggest remembering that the sequence of the Bill of Rights isn't random. The First Amendment came before the Second Amendment because our Founders clearly believed it is the most sacred principle in a democracy. "

The sequence of the amendments has absolutely nothing to do with any order of precedence.

Anyone who has ever taken even a rudimentary law class understands this.

However, if you want proof, consider this: Had the Founding Fathers proposed amendments based on order of precendence, then the 27th Amendment would actually be a higher precedence than the 1st Amendment, since in the original Bill of Rights, what became the 1st Amendment was the 3rd Article and the 27th Amendment is the 2nd Article.

http://www.constitution.org/billofr_.htm

[legaleagle 45]

If push came to shove, the 27th is, in all likelyhood, invalid. The time frame between proposal and ratification is too great for it to be considered viable pursuant to dicta from SCOTUS... however, that issue will probably never be contested in court, so the issue is moot.

[OdinsEye]

I am unaware of the precedent you mention.

[legaleagle 45]

Sorry, I have had little time for play, so this response is somewhat late. Try this:

`Four amendments proposed long ago--two in 1789, one in 1810 and one in
1861--are still pending and in a situation where their ratification in
some of the States many years since by representatives of generations
now largely forgotten may be effectively supplemented in enough more
States to make three-fourths by representatives of the present or some
future generation. To that view few would be able to subscribe, and in
our opinion it is quite untenable.'' Dillon v. Gloss, 256 U.S. 368, 375 (1921),

[hansulrichrudel]

I would think of guns at political meetings as a sort of "Honor Guard". Not an "Honor Guard" for the politicians but an "Honor Guard" for our Freedom. Just because a person's skin or rifle is black is not a reason to disparage either one I.M.O.

[Estreet1964]

Oh, here we go. Posts from clinically paranoid and genitally challenged knuckle draggers defending their right to play with their toys.

Look out! -- could be someone behind that bush!

[hansulrichrudel]

It's not guns that are scary, it's the hoplophobes!

[NYCexile]

Exactly: Here we go...

Clinically paranoid? You have some sort of training to be able to make such a claim?

"Genitally Challenged" The standard canard, but dressed up a bit. Seriously, all of your concern regarding my penis is pretty creepy. Please stop, OK?

Knuckle draggers. You have a photo? Something? Anything?

How many times have you been told that it's impolite to interrupt when the grown-ups are talking? Now go outside and play.

[JimInHouston]

Yes, here comes the reasoned discourse from the hoplophobes.

[Republicnotademocracy]

The 1st Ammendment relies on the strength and determination of the 2nd protecting it.


BTW: So much for *your* belief in the 1st Ammendment, eh?

[ReyKev]

There is no such thing as a gun free zone. Outlaws love those places.

[Republicnotademocracy]

Sorry, but you utter lib-speak. There would be no 1st Ammendment with out the strength and conviction of the 2nd backing it!

[TryToBeFlexible]

I have had to face fear my whole life for practicing my right to free speech. I am 54, and an LGBT citizen.

In college, I began handing out leaflets on the street. I was definitely threatened repeatedly with being "beaten up" for practicing my freedom of speech.

Later, while still in college, I was attacked and beaten for being perceived as gay.

Several times since, I have been threatened on city streets after being perceived as gay. For example, after coming out of a gay bar. I am not super obvious either. Generally, when I am alone in other situations, people don't guess, unless I tell them, and I don't routinely tell everyone at the store, post office, car dealership, etc.

This whole thing with people with guns acting threatening is something kind of new for you non-gay progressives and democrats. It takes bravery to overcome the fear of bodily harm, over and over again. As I have struggled to gain rights and acceptance I have faced implacable hatred from the right, and indifference from the non-gay left.

[hansulrichrudel]

You need to see http://pinkpistols.org

[JimInHouston]

Absolutely. Those who are victimized are those who most need to consider being armed.

[Karlitos]

Dear LGBT:

Indeed ... read the 14th amendment history. It was put into place precisely to guarantee fundamental rights to minority groups, who were being infringed those rights by the states. At the time, the minority of concern was African-Americans and their sympathizers. Prominently in the discussion was that African-Americans had a right to arms to defend themselves against those who would terrorize them. As a gay person, you are more exposed to hatred and physical violence. The second amendment guarantee ... and guaranteed against state action by the 14A, is put in place precisely for you. It guarantees that you possess the means to defend yourself from physical violence.

Get training, get armed, and stand up for yourself. No one else is going to do it for you.

[djcrsn]

Flexible--I have met the PInk Pistols here in Los ANgeles--good people